2021 (1) TMI 751 - AT - Central Excise

CENVAT Credit - capital goods - certain items viz. HR coils, MS angles, MS channels, MS plates, etc. - HELD THAT - The Assistant Commissioner passed the Order-in-Original on 18/03/2019 but the same was not actually delivered to the appellant. The appellant only came to know on 12/03/2020 when they received a letter from the Superintendent informing them about the passing of the Order-in-Original and ordered to recover the credit of ₹ 15,52,986/- along with interest and penalties. Thereafter the appellant vide their letter dt. 16/03/2020 informed the Superintendent that they have not received the Order-in-Original and requested him to provide the certified copy of the said Order-in-Original and the appellant also requested the Department to provide the proof of service of the said order on them; but the Superintendent vide his email dt. 17/03/2020 only provided scanned copy of the Order-in-Original but did not provide any proof of service of the said Order-in-Original on the appellant. Since the Department has failed to prove the delivery of the Order-in-Original on the appellant, the date on which the appellant has actually received the scanned copy will be considered as the actual receipt and from that date, the appeal filed before Commissioner (Appeals) was within time. This issue has been considered in various decisions and it has been consistently held that the Department has to give proof of actual receipt of the order by the assessee and in the absence thereof, the date of obtaining copy of the order by the appellant will be considered as the date of receipt of the order. The impugned order dismissing the appeal on time bar is not sustainable in law - Case remanded to the Commissioner (Appeals) with a direction to decide the appeal on merits - appeal allowed by way of remand.

Summary

Issues:
Appeal against rejection on time bar by Commissioner (Appeals) due to delay in filing appeal against Order-in-Original.

Analysis:
The appellant, engaged in manufacturing excisable goods, availed cenvat credit on certain items treated as capital goods, leading to a show-cause notice proposing to deny credit. The Assistant Commissioner disallowed the credit, and the Commissioner (Appeals) rejected the appeal on time bar. The appellant argued they never received the Order-in-Original and filed the appeal within time after receiving a letter from the Superintendent. The Department failed to prove delivery of the order, relying only on dispatch, contrary to legal precedents requiring proof of actual receipt. The Tribunal emphasized the importance of proof of delivery and held that the date of actual receipt by the appellant should be considered as the date of receipt of the order. Citing relevant decisions, the Tribunal set aside the impugned order, remanding the case to the Commissioner (Appeals) for a decision on merits.

Conclusion:
The Tribunal found the impugned order dismissing the appeal on time bar unsustainable due to lack of evidence of actual receipt of the Order-in-Original by the appellant. Relying on legal precedents and the appellant's arguments, the Tribunal set aside the order and remanded the case for a decision on merits. The judgment highlights the importance of providing proof of delivery of orders to taxpayers and emphasizes that the date of actual receipt should be considered for determining the timeliness of appeals.